Judge unsure if Neb. immigration suits should be in fed, state court; delays injunction ruling

By Margery A. Beck, AP
Wednesday, July 28, 2010

Judge delays ruling in Neb. immigration lawsuits

OMAHA, Neb. — A judge said Wednesday she’s not sure whether lawsuits challenging a Nebraska city’s ban on hiring and renting to illegal immigrants should be heard in federal or state court, delaying any ruling on blocking the voter-approved ordinance.

U.S. District Judge Laurie Smith Camp said during a hearing that she wasn’t sure whether she had jurisdiction over the lawsuits filed by the American Civil Liberties Union of Nebraska and the Mexican American Legal Defense & Educational Fund, also known as MALDEF.

Both civil rights groups sued the city of Fremont, saying the ordinance is discriminatory, and sought preliminary injunctions to keep the ban from being enforced while the lawsuits proceed. Smith Camp consolidated the lawsuits, but said she did not want to rule on any motions until satisfied the challenge should be heard in federal court.

The ban still won’t go into effect as planned this week because the Fremont City Council voted to temporarily suspended the ordinance until the lawsuits are resolved.

Smith Camp noted both lawsuits claim the ordinance violates Nebraska law because Fremont exceeded its municipal powers under state law by adopting the ordinance.

“At this time, it seems to me this case needs to be argued in state court, not federal court,” Smith Camp said. “I don’t have subject-matter jurisdiction if the claim can be resolved in state court.”

Smith Camp gave attorneys until Aug. 16 to file briefs arguing why the case should be heard in federal court. She will decide whether the case will continue in federal court after reviewing the briefs.

Attorneys for the groups declined to comment following the Wednesday hearing.

The attorney Fremont council members voted to hire to defend the ordinance, Kansas-based law professor Kris Kobach, said via teleconference with the court Wednesday that the city would not take any action to reverse the suspension while the court decides whether it has jurisdiction.

Kobach drafted the Fremont ordinance and offered to represent the city for free to fight the lawsuits. He also helped write Arizona’s new controversial immigration law.

Fremont, a city of 25,000 west of Omaha, is among a handful of Nebraska cities that have seen marked demographic changes primarily because of an influx of Hispanic workers at meatpacking plants. The ordinance has divided the community between those who say it makes up for what they call lax federal law enforcement and others who argue it could fuel discrimination.

Fremont’s ordinance would require employers to use a federal online system that checks whether a person is permitted to work in the U.S.

It also would require people seeking to rent property to apply for a $5 permit at City Hall. Those who said they were citizens would receive a permit and would not have to provide documents proving legal status. Those who said they weren’t citizens would receive permits, but their legal status would be checked. If they’re found to be in the country illegally and are unable to resolve their status, they would be forced to leave the property.

Landlords who knowingly rent to illegal immigrants could be subject to $100 fines.

The ordinance has put Fremont on the list with Arizona and other places in the national debate over immigration regulations. Arizona’s sweeping new law takes effect Thursday, but a federal judge blocked the most controversial sections Wednesday.

Arizona’s overall law still will be enacted Thursday, but without certain provisions, including a requirement that officers check a person’s immigration status while enforcing other laws.

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